Pran Nath Ghose vs Jado Nath Bhattacharji

Aikman, J.—This appeal arises out of an application made under the Probate and Administration Act of 1881 for probate of a will. On the 20th of December 1895, Musammat Sonamani, a Hindu lady, executed a will, in which she named the appellant Pran Nath Ghose and the respondent Jadu Nath Bhattacharji executors of the will. On the 9th of May 1896, the latter applied for and obtained probate of the will from the District Court of Benares. On the 17th of March 1897, the appellant also applied for probate of the will. This application was refused by the learned District Judge, and the applicant appeals to this Court. The appeal must succeed Section 9 of the Act provides-that when several executors are appointed probate may be granted to all simultaneously or at different times. If the applicant is an executor named by the will and is under no legal incapacity to act, the Court has no option but to grant him probate. Section 85 of the Act enacts that it is within the discretion of the Court to refuse to grant an application for letters of administration, but no such discretion is given in regard to an application for probate by a person selected by a testator for the administration of his estate. The case of Heera Coomar Sircar v. Voorgamoni Dasi ILR 21 Cal. 195, is in point. I decree the appeal, with costs here and in the Court below, and direct the District Judge to grant the application.